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Friday, June 22, 2007

Ind. Decisions - Supreme Court issues at least three today

In Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, Indiana, a 17-page, 3-2 opinion, in a case in which oral arguments were heard March 9, 2006, Justice Sullivan writes for the majority:

Water and sewer service is provided in Indiana cities by the municipalities themselves or by private, investor-owned utilities. In this case, a municipality seeks to acquire a portion of the operations of a privately-owned utility that serves a portion of the City recently annexed. We hold that it may do so pursuant to the requirements of Indiana’s general eminent domain statute. * * *

We make several concluding observations is support of this result.

First, it is clear to us that the 1982 changes that established article 1.5 – the municipal utilities article – in title 8 effected a substantive change in the referendum requirement. * * *

Second, reading the Legislature as subjecting utilities to the general eminent domain statute seems to us entirely consistent with the dictates of Ind. Code §§ 8-1-2-92 & 93 set out early on in this opinion. A utility like Utility Center holds an indeterminate permit subject to the authority of a municipality like the City to purchase its property. Such a utility does not have the authority to designate a particular condemnation procedure.

Third, and perhaps most important, both the utilities title and the eminent domain article mandate that Utility Center be paid the fair market value of its property that the City seeks to ac-quire as well as the damages, if any, to the residue of its property caused by taking out the part the City seeks to acquire. I.C. §§ 8-1-2-92 & 93; I.C. § 32-24-1-9.

Conclusion. We grant transfer and affirm the judgment of the trial court with respect to its decision to grant summary judgment in favor of the City.

Rucker, J., concurs. Shepard, C.J., concurs with separate opinion. Boehm, J., dissents with separate opinion in which Dickson, J., concurs.

Boehm, J., dissenting. I accept the majority’s conclusion that the placement of Section 8-1-30-6 in the Indiana Code as a part of a new Chapter 30 added in 1999 suggests that it may be limited to distressed utilities. But the language of the section is quite unequivocal:

Sec. 6. A municipality or other governmental unit may not require a utility company that provides water or sewer service to sell property used in the provision of such service to the municipality or governmental unit under IC 8-1-2-92, IC 8-1-2-93, or otherwise, unless the procedures and requirements of this chapter have been complied with and satisfied.
* * * Whatever the policy considerations may be, it seems to me that this section was carefully crafted to apply to all utilities. If that is not a proper reading of Section 6, the General Assembly could easily correct it, and the City could then initiate a new eminent domain proceeding. Be-cause I believe the Court of Appeals correctly resolved this issue, I would deny transfer. Given that transfer has been granted, I respectfully dissent.
In Juan J. Vasquez v. State of Indiana, a 6-page, 5-0 opinion, in a case in which oral arguments were heard March 1, 2007, Justice Dickson writes:
The defendant, Juan J. Vasquez, appeals his conviction of burglary on the sole ground that the trial court improperly excluded the testimony of a late-disclosed witness. The Court of Appeals affirmed the trial court's conviction in a memorandum decision. We granted transfer, vacating the Court of Appeals opinion, Ind. Appellate Rule 58, and now reverse the trial court. * * *

An erroneous exclusion of evidence does not, however, require a reversal if "its probable impact on the jury, in light of all of the evidence in the case, is sufficiently minor so as not to affect the defendant's substantial rights." Williams, 714 N.E.2d at 652; accord Fleener v. State, 656 N.E.2d 1140, 1142 (Ind. 1995); Ind. Trial Rule 61. The State does not argue harmless error but commendably acknowledges that Perez's probable testimony would have been important to the defendant's case. The exclusion of Perez as a defense witness in this case significantly impinged upon defendant's substantial rights. We reverse the judgment of the trial court and remand for a new trial.

In Richard Brown v. State of Indiana, an 8-page, 5-0 (with one dissent to Part I) opinion, in a case in which oral arguments were heard Jan. 30, 2007, Justice Dickson writes:
The defendant, Richard Carlos Brown, appeals his convictions and resulting sentence on three counts of criminal confinement and three counts of identity deception, all class D felonies. The Court of Appeals reversed the criminal confinement convictions, finding the applicable statutory provisions unconstitutionally vague, but it affirmed the convictions for identity decep-tion and remanded for sentencing. Brown v. State, 848 N.E.2d 699, 713, 716 (Ind. Ct. App. 2006), aff'd on reh., 856 N.E.2d 739 (Ind. Ct. App. 2006). Both the defendant and the State sought transfer, which we granted. Brown v. State, 860 N.E.2d 599 (Ind. 2006) (table). Finding that the criminal confinement statute cannot serve as a basis for the convictions in this case and that the evidence is insufficient to establish all of the statutory elements of identity deception, we reverse. * * *

The defendant's convictions for criminal confinement and identity deception are each re-versed, and we remand for further proceedings in conformity with this opinion.

Sullivan, Boehm, and Rucker, JJ., concur.
Shepard, C.J., dissents as to part 1 and concurs as to part 2, without separate opinion.

Posted by Marcia Oddi on June 22, 2007 02:37 PM
Posted to Ind. Sup.Ct. Decisions